Judge: Lynne M. Hobbs, Case: 24STCV05616, Date: 2024-10-02 Tentative Ruling

Case Number: 24STCV05616    Hearing Date: October 2, 2024    Dept: 61

SOROUSH ARANI, AN INDIVIDUAL vs SIAVASH ARANI, AN INDVIDUAL, et al.

TENTATIVE

Defendant Siavash Arani’s Demurrer to the Complaint is OVERRULED. Defendant is ordered to serve and file an answer within 20 days of this Order.

Plaintiff to give notice.

DISCUSSION

A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Pro., §§ 430.30, et seq.) In particular, as is relevant here, a court should sustain a demurrer if a complaint does not allege facts that are legally sufficient to constitute a cause of action. (See id. § 430.10, subd. (e).) As the Supreme Court held in Blank v. Kirwan (1985) 39 Cal.3d 311: “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. . . . Further, we give the complaint a reasonable interpretation, reading it as a whole and its parts in their context.” (Id. at p. 318; see also Hahn. v. Mirda (2007) 147 Cal.App.4th 740, 747 [“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. [Citation.]”)

“In determining whether the complaint is sufficient as against the demurrer … if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good although the facts may not be clearly stated.” (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.)

“A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) Such demurrers “are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.” (Mahan v. Charles W. Chan Insurance Agency, Inc. (2017) 14 Cal.App.5th 841, 848.)

A demurrer should not be sustained without leave to amend if the complaint, liberally construed, can state a cause of action under any theory or if there is a reasonable possibility the defect can be cured by amendment. (Schifando v. City of Los Angeles, supra, 31 Cal.4th at p. 1081.) The demurrer also may be sustained without leave to amend where the nature of the defects and previous unsuccessful attempts to plead render it probable plaintiff cannot state a cause of action. (Krawitz v. Rusch (1989) 209 Cal.App.3d 957, 967.)

Defendant Siavash Arani (Defendant) demurrers to the Complaint filed by Plaintiff Soroush Arani (Plaintiff) for the dissolution of the LLC in which both have 50% member shares. Defendant argues that the Complaint is uncertain because it mentions, but does not attach, the company’s operating agreement. (Demurrer at pp. 5–6.)

The absence of the operating agreement is no cause for demurrer. “A written contract may be pleaded either by its terms—set out verbatim in the complaint or a copy of the contract attached to the complaint and incorporated therein by reference—or by its legal effect.” *(McKell v. Washington Mutual, Inc. (2006) 142 Cal.App.4th 1457, 1489.) However, the requirement of verbatim pleading of contracts applies to actions based upon the contract or its breach. (Ibid.)

The present action is not one on a contract, but for dissolution of a limited liability company by judicial decree under Corporations Code § 17707.03. The operating agreement is mentioned only with respect to a clause within it that allows for judicial dissolution according to this law. (Complaint ¶ 17.) The absence of the full operating agreement in the Complaint does not render the pleading so uncertain or ambiguous that Defendant cannot reasonably respond. (Mahan, supra, 14 Cal.App.5th at p. 848.)

The demurrer is therefore OVERRULED.